Sunday, April 5, 2020 -
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Child abuse in utero

Can a baby be abused in womb?”

So ran the headline. What a fascinating question. It unfolded this way: A person is violent against a pregnant woman. When the baby is born, it suffers lasting injury due to the violence against it before it was born. Is the violent person guilty of a crime?

Say immediately: Of course! The violent criminal caused the baby’s injuries.

Or say immediately: Of course not! The baby was not a baby when it was injured. It was an “it.”

In other words, what is a baby before it is born? If it is something that is allowed to be aborted, then it is not human as is, unless one says that it is OK to murder humans. No one in the abortion debate says that. So, if it is OK to abort, the aborted fetus was not human as is. Therefore, any injury inflicted on a fetus is not a criminal act and not subject to punishment.

Ah, but this is different. The fetus’ injury remains after it is born. It is now an injured human being, even according to those who say that in utero it was not a human being.

So, can a baby be abused in the womb?

There are three possibilities: 1. Consistency. 2. Inconsistency. 3. Case law.

Consistency: Either there is “personhood” at conception; a fetus is human and injury to it is criminal and should be prosecuted. Or, there is no “personhood” at conception. A fetus is not human and injury to it is not criminal, and should not be prosecuted.

Inconsistency: Even though there is no personhood at conception and a fetus is not human and may be aborted, injury to a fetus is criminal and should be prosecuted.

This last approach lends laser focus to the real issue in abortion, highlighting the rationalizations covering it. To say that a fetus is not human doesn’t pass the smell test. If it is not human, then what is it? To say that a woman’s right to choose supersedes a fetus’ rights raises a difficulty: If so, on what basis can injury to a fetus in utero be wrong? If it is OK to kill a fetus, what could be wrong with injuring a fetus?

Say that the injury to the baby was inflicted by someone other than the mother. It would be very rare, or perhaps impossible, to injure her without injuring her fetus, too, who can survive with lasting injury. All agree that it is criminal to injure the mother. All agree that it is right to prosecute the criminal for injury to the mother. But on what grounds is it right to prosecute for injury to the mother but not to the fetus?

Say that the injury to the baby was inflicted by the mother herself. Is she guilty of child abuse? If she did the same to the baby after it was born, would we exempt her from child abuse? In both cases, the baby could suffer the same lasting damage due to the mother. On what basis can we exempt the mother for damage to the baby when it was a fetus, yet prosecute her if she inflicted the same damage to the baby after it was born?

What might Judaism say about all of this?

Consider: If the fetus is human, does this bestow on it unlimited rights? It depends. If personhood begins at conception, then yes, a fetus has unlimited rights. Personhood, however, is a category that does not exist in Jewish law, under which the entire discussion of abortion is based on case law, not on abstract criteria, such as “a fetus is a person” or “a fetus is not a person.” Under Jewish law, a fetus that threatens the life of the mother should be aborted. Otherwise, virtually never.

So, if Halachah permits abortion, albeit in rare circumstances, such as when it threatens the mother’s life, and if Halachah also holds that a fetus is human, does that make Halachah inconsistent? Is it any different from those who would permit abortion yet also penalize one who injures a fetus who survives and is born defective?

Those stuck in the inconsistency dilemma — wanting to preserve a woman’s right to abort, and also wanting to criminalize injury to a fetus — consider the question of abortion abstractly. Either a fetus is a person or it isn’t a person. On that binary, either there is never any justification for abortion, or there is no morally consistent way to justify the criminalization of child abuse in utero. I don’t know what those who favor unrestricted abortion will do if a fetus is injured, yet survives with lasting injuries. On what basis can the person who caused the injury be held liable? On the basis of Emerson’s “consistency is the hobgoblin of small minds”? Is that the same in abortion and in literature?

Halachah never raises the question as to whether a fetus is a person, or isn’t a person. Halachah deals with real cases, beginning in Exodus 21:22-23:

“If men shall fight [trying to kill each other] and they collide with a pregnant woman [one of the men, intending to strike the other, strikes the woman instead] and she miscarries, but there will be no fatality [to the woman], he [who struck the woman] shall surely be punished as the husband of the woman shall cause to be assessed against him, and he shall pay it by order of judges. But if there shall be a fatality [to the woman] . . . ”

Jewish abortion law grows out of real cases such as this, not out of philosophical discussions as to when life begins. Which means: Abortion is forbidden, unless . . . Then it is the case law that will fill in the “unlesses,” such as a fetal threat to the life of the woman. (The other “unlesses,” very rare, are beyond the purview of this column.)

The halachic case law approach does not ease the consideration of abortion. For example, if, under Halachah, one says: Abortion is required if the fetus threatens the mother’s life, extremely difficult questions still arise.

What constitutes “threat to life”? Definite threat? Possible threat?

How much weight is to be given to dangerous medical considerations in a previous pregnancy that do not seem present in the current pregnancy?

What if doctors disagree as to the extent of the current threat?

What if the mother, or the father, or both, do not want to abort even in the face of danger to the mother?

What if time is a factor — for example, there is a threat to the mother’s life, but doctors say that it will not come to fruition for two weeks? Can one rely on this? Is an abortion required now? Does one take into consideration the possibility of the abatement of the threat, however unlikely?

What if there is no physical threat to the mother’s life, but the pregnancy poses a threat to her mental health? Does this constitute a threat to life? If it does in principle, how is it measured in practice? And who measures?

Most of these considerations are not matters of personal preference. These considerations are not strictly a matter of a mother, or a father, or both agonizing over a potential abortion. They are criteria by which Halachah determines whether this case fits the exception rule to Halachah’s recoil from abortion.

Given the admittance of all of these (and more) practical considerations, I would argue that Halachah’s case law approach is medically and morally more sensitive than either side of the “personhood” approach, which, it seems, either allows or forbids abortion, no matter what.

Copyright © 2020 by the Intermountain Jewish News

Hillel Goldberg

IJN Executive Editor |

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